In her opinion sustaining the use of race in admissions in the 2003 University of Michigan Law School case, Justice Sandra Day O’Connor spoke of the “deference” owed to institutions of higher education as they make “complex educational judgments.” In the three years since the former justice wrote that opinion, the case for such deference has been seriously eroded by the discovery of educational judgments involving race and also sex that, however complex you might suppose them to be, are plainly against the law.
Hundreds of colleges and universities, it turns out, maintained programs–summer internships, scholarships, and paid teaching fellowships–for which students of only a certain race or ethnicity or sex were eligible. These were not, it should be emphasized, programs that on their face were open to all students but which then used quotas or disguised preferences to discriminate in favor of certain students and against others. No, these were programs from which you were flatly excluded if you were of the wrong race or ethnicity or sex.
The good news is that most such programs (including at Princeton, MIT, Cornell, and Tufts) have now been opened to everyone. Administrators for the most part undertook the revisions upon advice from their lawyers, who realized (often as a result of letters summarizing the pertinent law from the Center for Equal Opportunity’s general counsel, Roger Clegg) that their own programs, unchanged, could not survive legal challenge.
In a few cases–typically where administrators overrode the advice of their lawyers–the federal government stepped in, with the Education Department’s Office for Civil Rights using its authority under Title VI of the Civil Rights Act to insist (to schools receiving federal funds, as almost all do) on compliance with that law. Title VI provides that no one, on the grounds of race or sex, can be “excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”
February brought a new development in this story when the Justice Department’s threat of a lawsuit against Southern Illinois University resulted in a consent decree under which the school may no longer restrict paid fellowship programs to students (undergraduate, prospective graduate, and postdoctoral) of certain racial and ethnic backgrounds or sex. Three programs in particular were described in the agreement: the Proactive Recruitment of Multicultural Professionals for Tomorrow fellowship known as PROMPT, which was open only to African Americans, Latino/Hispanic Americans, Asian Americans, and Native Americans; the Bridge to the Doctorate fellowship known as BRIDGE, which was open only to Hispanics, African Americans, Native Americans, Alaskan Natives, and Pacific Islanders; and the Graduate Dean’s fellowship, which was open only to women and African Americans, Hispanic Americans, Asian Americans, and Native Americans. Students granted the fellowships worked as teachers or researchers.
The baldly exclusionary nature of the programs meant that students of the “wrong” race or ethnicity or sex had no chance to compete for the opportunities. Not surprisingly, as the Justice Department found, the programs worked as designed. Since 2000, none of the 78 PROMPT fellowship recipients was white or from a minority group other than those the program embraced. The same was true of the 27 recipients of BRIDGE fellowships (created in 2003). As for the graduate deans program, none of the fellowships was awarded to a white male.
Under the consent decree, the programs are being revised so as to exclude no one from eligibility. Nor can race or sex be used to shut out students from any new programs. Obviously, the agreement is important for SIU and its students, all of whom will be treated equally, at least at the threshold. But the case is notable in other respects as well.
Because the programs at issue involved employment, the Justice Department acted under Title VII, the employment section of the Civil Rights Act of 1964. In a case ten years ago brought against Illinois State University, Justice said that Title VII prohibits hiring on a basis that flatly excludes certain people on account of race or sex. But the jobs in that case were for maintenance workers. In the SIU case, Justice has said, in effect, that Title VII draws no distinction between blue-collar jobs and teaching positions and that its anti-discrimination principle extends to both. In neither context may a university say that only people of a certain race or ethnicity or sex may be considered.
This principle would seem to apply not just to paid fellowships for students who aspire to be professors, but also to faculty hiring. Thus, where colleges and universities create professorships for individuals of only a certain race or ethnicity or sex, they would appear to be–certainly they should be–headed for a day of reckoning under Title VII. Not incidentally, if SIU persists in the plan announced last year by its chancellor to set aside $3 million for the hiring of professors of only certain racial and ethnic backgrounds, SIU could find itself again the subject of a Justice Department probe. Jonathan Bean, a history professor at SIU who persistently objected to the paid fellowship programs, points to faculty hiring as “the next frontier of the legal battle over preferential affirmative action.” He may be right.
If so, of relevance may be the fact that in its investigation of SIU, Justice refused to treat academic employment in the same terms as the Supreme Court did student admissions in the Michigan Law School case. There, in an interpretation of the Fourteenth Amendment’s equal protection clause, the Court recognized “diversity” as a “compelling governmental interest” and thus a good enough reason to justify racial preferences in admissions so long as they are “narrowly tailored.” But the Court has never said that the pursuit of diversity may justify race preferences in employment. SIU tried to justify its programs in terms of diversity, but Justice refused to carve out a diversity exception to Title VII’s prohibition against employment discrimination. “Colleges and universities can’t get away with brazen discrimination in the name of diversity,” a senior Justice Department lawyer told me.
It’s possible, even likely, that some colleges and universities which have quit their exclusionary ways will nonetheless discriminate on grounds of race and sex among applicants to their revised programs. Still, three years after the Michigan Law School case, it is evident that institutions of higher education can hardly assume that their “educational judgments” involving race and sex are sacrosanct. Thanks to professors willing to oppose discriminatory programs on their campuses like SIU’s Jonathan Bean, and to institutions like the Center for Equal Opportunity that are willing to inform wayward schools of their legal obligations, higher education now finds itself being closely watched. And the most recalcitrant schools may find themselves in court.
Terry Eastland is the publisher of The Weekly Standard.
